Law in Early America

The Canadian Review of American Studies, Volume 12,No. 1, Spring 1981 LawinEarlyAmerica John E. Crowley Gerard W.Gawalt. The Promise o_f'Power: fhe Emergence ol the Legal Profession in Mimachusetts, 1760-1840. Westport, Conn.: Greenwood Press, 1979. 254 + x pp. Leo Herskmvitz and Milton 1\1.Klein, eds. Courts and Law in Ear(v Nell' York: Selectt!d Essays. Port Washington, N.Y.: Kennicat Press, 1978. 155 pp. MarvK. Bonsteel Tachau. Federal Courts in the Ear{v Republic: Kentucky 1789-1816. Pnnceton: Princeton University Press, 1978. 2Jt + i\ pp. Until a generation ago most American legal history had preoccupations appropriate to its close association with the curriculum of law schools. Professional legal history was the chronicling of substantive changes in the law, the discovery of arcane legal precedent, the criticism on historicist grounds of presumed analogies, the institutional history of judicial procedures and responsibilities, and the analysis of constitutional doctrine. Legal historians usually discouraged other historians from taking an interest in these studies, but fell into two camps in doing so. Some advised that legal history was too anachronistically whiggish and too professionally antiquarian to be of much importance to "real" historians; others warned historians, as laymen, to have decent and prudent modesty and not to venture onto professional turf. Early American legal history used to be of interest chiefly because it was early and therefore of potential significance as precedent, though that use depended on the law's being American, which was controversial for the colonial period. There is no equivalent consensus now, and most historians need have little regret for its loss. There are instead several promising lines of inquiry regarding the juncture of law and early American social history. Among these subjects are the relation of private and public agencies of social control in Puritan New England, lawyers and judges as social groups, the social status of blacks and women, and the role of courts as the most 68 John E. Crow/~ 1 . usual form of social agency and institutionalized authority before their private and public bureaucratization in the nineteenth century. As a whole, the collection of articles in Courts and Law in Ear(i•New York demonstrates several of the older shortcomings and few of the recent advantages of early American legal history. It contains papers that are superficial), revisionist regarding legal history while being out of touch with othe~ historical research, that are casual in their connection of different findings even in the field of legal history alone, and that are pretentious about the · possibilities of legal history while offering little sustained discussion of the appropriate methodology and theory. Three articles deal with the institutional and political history of New York's courts. All indicate the English character of early American law, in formal structure, in the substance of its proceedings, and even in the conflicts that arose over American divergence from prevailing English organization. Government of the first British empire took on most of its enduring institu· tional form in the 1690s, and it was from those years that such intercolonial uniformity as existed in the apparatus of courts dated as well. Justices of the peace were fundamental to the court system. As unpaid legal amateurs they were well suited to the talents of the population and the resources of the government, both scanty. Just as in England, justices in each county met periodically to deal with local government and serious criminal charges. Throughout the American colonies justices differed from their English counterparts in handling the bulk of minor civil jurisdiction, which in England was dealt with either by a variety of local, specialized and traditional courts or by the highly centralized royal variety. These institutional histories are characteristically reliable, but they and other individual studies have been effectively summarized in Laurence M. Friedman's, A Histo,y of American Law. Several other articles in the collection take up what appear to be fresher topics but become downright silly. An article on divorce tells us that the relevant law in New York ''is deeply rooted in events and practices dating back to the colonial period of our history" (p. 49), but in illustrating this point it unconsciously shows how skewed from the history...